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Ruling Clears Way For Lindows Trial

Posted by simoniker on from the not-big-deal-yet dept.

shystershep writes "Various sources are reporting that Microsoft's appeal in the Lindows trademark infringement suit was rejected by the Ninth Circuit Court of Appeals. At issue was the trial judge's decision [PDF link] to 'instruct a jury to consider only whether 'windows' was a generic term before November 1985, when the first version of Microsoft's Windows was released.' This is significant because a generic mark receives no trademark protection, and the ruling that the jury must make that determination based only on the use of the term before 1985 is a major blow to Microsoft."

11 of 385 comments (clear)

  1. What it all means by shystershep · · Score: 5, Informative

    From the trial judge's ruling:

    the Court declares it will instruct the jury to consider whether the Windows mark was generic during the period before Microsoft Windows 1.0 entered the marketplace in November 1985. Furthermore, the Court will not instruct the jury that even if Windows were generic prior to November 1985, the trademark would nonetheless be valid today so long as the primary significance of the term today is not generic.

    This doesn't mean that the judge has ruled that "windows" is generic, but it does mean that Lindows can (try to)point out to the jury that "windows" was used generically before Microsoft started using it. If it is generic, Microsoft loses their trademark protection in that name (althought "Microsoft Windows" would probably still be valid). Now it's all about the status of that term in the computer industry, including the commercial side of it, prior to 1985.

    --
    The bigotry of the nonbeliever is for me nearly as funny as the bigotry of the believer. - Albert Einstein
    1. Re:What it all means by jdray · · Score: 5, Interesting

      When did the term "X-Windows" come into play? It seems to me that therein lies the root of a good legal standing on the subject.

      --
      The Spoon
      Updated 6/28/2011
    2. Re:What it all means by nine-times · · Score: 5, Insightful

      I just want to clarify what you said. According to what you quoted, the ruling didn't merely allow Lindows to argue that "windows" was a generic term prior to the release of MS Windows 1.0. The ruling is against a Microsoft argument that, even if "windows" had been a generic term prior to 1985, it has become an MS term.

      The ruling says that what the jury will consider is only whether the term "windows" was generic in 1985, before Microsoft Windows 1.0, and if the jury finds that it was, then Lindows wins.

      I think this is good news, because I believe Lindows has already produced evidence that Apple and Xerox had been using the term.

    3. Re:What it all means by Anonymous Coward · · Score: 5, Informative

      Apple used the term "Windows" on their Lisa in 1983. Xerox used it on the Xerox Star in 1981 and on the Xerox Altos in the late '70s. I believe it dates even earlier.

  2. Ghosts of Pentium? by Dark+Paladin · · Score: 5, Insightful

    Correct me if I'm wrong, but Intel went through something like this when AMD and Cyrix had "486 compatible" on their labels, and Intel went to court. Judge ruled: 486 too generic, which moved Intel to start naming their processors to Pentium and the like and trade mark it so somebody couldn't claim "Pentium compatible!" without getting into trouble.

    Microsoft might be facing this themselves now. Let's face it - before 1984, the computer term "windows" existed. Everybody with a GUI called their interface a "window" and a collection of them was a set of "windows". MS might very well lose the case.

    Short run: they call future OS's by their names and actually release "MS Longhorn 2003", much like Apple has "OS 10.3 Panther". Lindows will be able to sell their product (in the US at least) under the Lindows name.

    Long run: More lawsuits between MS at Lindows anyway. Like I'm so surprised.

    --
    52 Weeks, 52 Religions with John Hummel
  3. Not much of a point by A+nonymous+Coward · · Score: 5, Insightful

    Would Microsoft have named their products Office, Word, Paint, .... Windows ... if those weren't generic terms and they weren't trying to grab the common term and associate it strictly with themselves?

    --
    Infuriate left and right
  4. Great! by RelliK · · Score: 5, Insightful

    Now I wish they'd get smacked for "SQL Server", "Proxy Server", etc.

    --
    ___
    If you think big enough, you'll never have to do it.
  5. Lindows is trouncing them by Anonymous Coward · · Score: 5, Insightful

    With the current jury instructions (use time period before MS' products to determine genericness) Microsoft *IS* going to lose their trademark if this goes to trial.

    This will be a great show to watch.
    I predict huge press. The ironic twist is that Microsoft brought this upon themselves! By suing Lindows, 'er Linspire - they brought into question their own trademark. Now that grenade is going to blow up in their face.

    I hope they do not pay some money to settle since that's what they've been doing recently. Because it will be great to watch Gates try to deny all the windowing systems they ripped off when they greated their product.

    Anyone also notice that Lindows doesn't care if they lose? This is playing out perfectly for them. They get a ton of press regardless and if they win they'll be in the history books. Or Microsoft will be for being so dumb to get their OWN trademark invalidated.

    It's nice to see the little guy win one.

    Lindows - DON'T SETTLE! We're counting on you.

  6. Re:Why was it called MICROSOFT Windows? by dabraun · · Score: 5, Informative

    Bull.

    You do hear about the 'Dodge Caravan', the 'Gilette Sensor', the 'Nikon CoolPix' - in fact the company name is often prepended when it would not otherwise be all that clear what the product was. What's a 'Sensor' if it's not from Gilette? Would a 'CoolPix' sound like anything more than a disposable camera if it wasn't called the 'Nikon CoolPix'?

    There are plenty of examples of company names being used or not used. In 1985 calling a product just plain 'Windows' might leave you thinking that it was a something used when building houses.

    David

  7. Re:If it's secret by Fearless+Freep · · Score: 5, Funny

    but Michael Moore and others have mentioned it.

    Credible source

  8. Microsoft is dead now... by Anonymous Coward · · Score: 5, Interesting

    There is a huge pile of evidence to show that the term windows was very much generic at the time MS pick it, THAT IS WHY THEY PICKED IT. They didn't pick it because they were trying to create some new brand (ala Nike, Sony, eBay, etc.), but rather, they chose the word windows because that had become the term to define an entire category of window manager type programs.

    With this latest ruling, which is now appeal proof, Lindows has the wooden stake to drive through MS' heart.

    This will be a fun trial to watch. Robertson, Gates and Ballmer are all scheduled to testify.